ABOUT THE AUTHOR:
This article is penned by Sooraj K., who is currently pursuing his B.A, LLB degree and is a student of Govt. Law College, Thrissur.
ABSTRACT:
Right to Be Forgotten is becoming increasingly important as a legal mechanism for dealing with the problem of the everlasting character of personal information on the internet. Its recognition in India creates the difficult constitutional question of reconciling Article 21 of the Indian Constitution providing for the right to privacy, and Article 19(1) (a) guaranteeing freedom of speech and expression. This article reviews the evolution of the Right to Be Forgotten in the context of Indian constitutional jurisprudence and data protection law. It concludes that the Right to Be Forgotten can only exist as a qualified right subject to legitimate public interest, free speech and access to information. Proportionality is therefore crucial in dealing with this right.
INTRODUCTION:
With the invention of the internet, information became available on a worldwide scale and with an everlasting character that could hardly be imagined in the times before the digital age. Personal information from someone’s past may remain available for others in the form of search engine results, notwithstanding the fact that it has lost its relevance. This creates a question of whether an individual can control access to his personal information, whose consequences impact him today. This is the core of the ‘Right to Be Forgotten’.
In India, the Right to Be Forgotten has been mainly developed through the broad concept of the right to privacy. In the landmark judgment of Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court of India recognised the right to privacy as a fundamental right under Article 21 of the Indian Constitution.[1] At the same time, any attempt to control access to personal information should be assessed against the background of Article 19(1) (a), which guarantees freedom of speech and expression. Moreover, personal information may retain some value to journalists, researchers and other members of the public.
The introduction of the Digital Personal Data Protection Act, 2023 has raised a new discussion about the existence of the right of erasure of information and its application. However, this right should not be understood as the right of automatic removal of any personal information from the web. Thus, the question of balancing the interests in privacy and free speech remains very relevant. This article analyses the possibility for India to ensure the privacy and dignity of individuals and yet maintain freedom of speech and access to information.
- Constitutional Foundation of the Right to Be Forgotten
The constitutional basis of the Right to Be Forgotten in India can be traced through the concept of the right to privacy under Article 21 of the Indian Constitution. The landmark decision of Justice K.S. Puttaswamy (Retd.) v. Union of India provided recognition of the right to privacy as a fundamental right.[2] The Court linked the right to privacy with the individual’s dignity, autonomy and control over certain aspects of personal life. Also, the right to privacy was recognised as not limited to physical spaces but must also adapt to the modern era of technological development.
The decision is relevant for the Right to Be Forgotten since control over personal information is an integral part of the right to informational privacy. The internet presence of the information about past events, relationships, accusations, allegations and other personal information of an individual impacts his right to live in accordance with his dignity and exercise his autonomy. However, the recognition of privacy does not mean that every individual can demand removal of any piece of information concerning him just because he wants it.
The Supreme Court in the landmark case of K.S. Puttaswamy (Retd.) v. Union of India clearly stated that privacy is not an absolute right and the restrictions upon it must be legal and proportional. Thus, the constitutional position concerning the Right to Be Forgotten becomes more complicated since the removal of personal information impacts another individual’s or the public’s right to obtain information.
This constitutional tension becomes particularly relevant since the Indian courts are increasingly facing cases involving the Right to Be Forgotten. For instance, the decision in Jibin Menon v. Union of India made by the Kerala High Court established the potential prejudice resulting from the internet accessibility of judicial records.[3] Other recent decisions involved directions to mask and delete information available in the results of search engines if it has been established that it causes serious prejudice to the individual who has been cleared of the charge.[4]
- Judicial Recognition of the Right to Be Forgotten in India
The right to be forgotten in India has been recognised through judicial decisions and has not emerged from any comprehensive statutory provision. The recognition of the right in India started with the decision of the Supreme Court of India in the case of K.S. Puttaswamy.[5] This case provided a constitutional basis for the right to be forgotten in India as the case clarified that the right to privacy includes informational privacy and that informational privacy implies an individual’s ability to control his or her existence on the internet. Nevertheless, the decision did not recognise the right to be forgotten as absolute and stated that such right would be subject to restriction in the presence of legitimate interests, such as freedom of expression, public interest, etc.
Subsequently, the High Courts have tried to provide a practical interpretation of this principle. In the case of Subhranshu Rout v. State of Odisha, the Orissa High Court has discussed the right to be forgotten in the context of intimate personal information and stated that privacy involves the ability of an individual to limit, delink or delete personal information that is misleading, embarrassing or irrelevant.[6] In the case of Vysakh K.G. v. Union of India, the Kerala High Court has analysed the question of the right to be forgotten in relation to the continued online availability of judicial records.[7] The Court has distinguished the different aspects of the right, including erasure, de-indexing and anonymity, while also being cautious about judicially creating a comprehensive scheme in the absence of legislation.
An important distinction is made between two methods of controlling the information, namely, deletion of information at the source and de-indexing of information from search engines. While deletion destroys the information completely, de-indexing of information leaves the information intact and merely reduces its accessibility using name-based searches. De-indexing of the information can provide a middle ground between deletion of information and its complete accessibility. Recently, the Delhi High Court has paid special attention to this distinction while analysing the cases concerning online judicial records and search engines. In the case of Laksh Vir Singh Yadav v. Union of India, the Delhi High Court has recognised the right to be forgotten as part of informational privacy and examined remedies such as de-indexing and masking. The Court also distinguished the role of search engines from that of original publishers, making the nature of the platform an important consideration in determining the appropriate remedy.[8]
- The Digital Personal Data Protection Act, 2023 and the Right to Erasure
With the enactment of the Digital Personal Data Protection Act, 2023, India takes an important step forward in its treatment of personal data and recognises, through statute, the individual’s interest in controlling personal information. The Act uses the expression “erasure” and not a separate “Right to Be Forgotten.” Section 12(1) of the Act gives a Data Principal the right to correction, completion, updating and erasure of personal data for which consent was provided. Further, Section 12(3) of the Act provides that, upon receipt of a request for erasure, a Data Fiduciary shall erase the personal data unless the retention of such information is necessary for the purpose for which it was provided or for reasons of law.[9]
While important, this statutory provision cannot be equated to the larger constitutional Right to Be Forgotten. Section 12 functions within the statutory regime on processing of digital personal data, while the developing Right to Be Forgotten is concerned with the continued availability of the information and may arise even where there is no question of processing of data by a Data Fiduciary. This point becomes significant particularly in the context of newspaper archives, judicial records and search engine results.
However, there is a need to strike a balance between the individual’s right of control over the data and legitimate retention. Thus, the right of erasure is not absolute, and information can continue to be retained where retention is legally mandated or is required for the purpose for which it was provided. This balancing of rights is consistent with the broader idea that privacy rights are subject to limitations.
Further, with the notification of the Digital Personal Data Protection Rules, 2025 and phased commencement of the Act, the statutory regime for erasure and retention has gained more detail.[10] However, the regime does not, in itself, answer the very difficult question of whether information which is available legally to the public must become inaccessible only because it is about an identifiable individual. The statutory regime thus provides an important framework while the constitutional balance between privacy and freedom of expression remains important in the determination of the scope of the Right to Be Forgotten.
- Balancing the Right to Be Forgotten with Freedom of Expression
The key problem with the right to be forgotten is that, sometimes, it may be necessary to restrict information that is otherwise publicly available to protect privacy. If such a right of removal of personal information is exercised without limitations, it may interfere with Article 19(1)(a) of the Constitution, which protects freedom of speech and expression. This problem assumes significance particularly where the information is about judicial proceedings, public figures, journalism or events having continued public importance.
Thus, the Right to Be Forgotten cannot be seen as a right to rewrite or erase history. In Puttaswamy, the Supreme Court itself held that control over personal information cannot result in total erasure of one’s history. Information may be available where it is necessary for purposes of freedom of expression and information, public interest, legal purposes and other valid purposes.[11]
De-indexing of the information from the search engine is different from removal of the original material from the search engine. It may prevent the information from becoming accessible when a person’s name is entered into the search engine. The difference can help find a less restrictive alternative where there is uncontrolled accessibility of the information based on an individual’s name while the original material is of legitimate public interest. The landmark decision of the Delhi High Court in Laksh Vir Singh Yadav v. Union of India (2026) illustrates this aspect of the problem.
A similar approach has to be followed with respect to judicial records. Open justice demands that the courts must remain transparent and the decisions of the courts must be available in the public domain. However, the continued association of the individual’s name with a criminal proceeding may lead to serious and disproportionate consequences where the individual has subsequently been acquitted, discharged or otherwise exonerated. The proper approach in such situations may be de-indexing or masking, and not destroying the judicial record. The recent guidelines of the Delhi High Court for such reliefs have provided specific parameters, including public interest.
The balancing exercise has to be done on a case-to-case basis. Considerations include the accuracy and age of the information, the nature of the person’s involvement, the nature of the proceedings and their outcome, the person’s status as a public or private figure, the continuing public interest in the information, and the prejudice caused.
- Way Forward and Conclusion
From the development of the Right to Be Forgotten in India, it is evident that a solution can neither come from an absolute right to privacy nor from an absolute right of access to information. Any solution must account for the fact that the value of information changes over time and that some information serves a valid public interest. This has been shown in the recent case of the Delhi High Court where the application of measures like de-indexing and masking has proved to be very effective in reducing the disproportionate digital harm without destroying the document.
There is therefore need for a consistent way of assessing whether relief of this kind can be granted in India based on the nature and accuracy of the information; time that has passed; state of the individual; outcome of the legal process; extent of the public interest involved and the harm done through accessibility of the information; and where there is an act of law prohibiting certain kinds of information from being disclosed. The Right to be forgotten must thus be understood as a qualified right and an exercise of proportionality rather than the automatic deletion of the information.
FOOTNOTES:
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- Id., ¶ 310.
- Jibin Menon v. Union of India, W.P. (C) No. 6504 of 2024, order dated 10 Apr. 2024 (Ker. H.C.).
- Rohan Palaha v. State of Haryana, CRM-M-7673 of 2025, order dated 25 Feb. 2025 (P&H H.C.); ABC v. State Govt. of NCT of Delhi, CRL.M.C. 2175 of 2025, order dated 8 May 2025 (Del. H.C.).
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (Kaul, J., concurring).
- Subhranshu Rout @ Gugul v. State of Odisha, 2020 SCC OnLine Ori 878.
- Vysakh K.G. v. Union of India, 2022 SCC OnLine Ker 7337.
- Laksh Vir Singh Yadav v. Union of India, W.P. (C) No. 1021/2016 & connected matters, judgment dated 29 May 2026 (Del. H.C.).
- Digital Personal Data Protection Act, 2023, No. 22 of 2023, § 12(1), (3) (India).
- Digital Personal Data Protection Rules, 2025, Ministry of Electronics and Information Technology (14 Nov. 2025); see also Digital Personal Data Protection Act, 2023, § 1.
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
